New Jersey Division of Youth and Family Services v. K.M.

April 16, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,v.K.M., DEFENDANT-APPELLANT.NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,v.R.M., DEFENDANT-APPELLANT.IN THE MATTER OF THE GUARDIANSHIP OF B.N.M. AND E.R.M., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FG-15-28-03 and FG-15-38-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 5, 2010

Before Judges Wefing, Grall and Messano.

R.M. and K.M. are the mother and father, respectively, of two girls, B.M. and E.M. B.M. is nearly fourteen years old, and E.M. just turned eight years old. R.M. and K.M. have appealed from a trial court judgment terminating their parental rights to the girls, and we have consolidated their appeals. After reviewing the extensive record in light of the contentions advanced on appeal, we affirm.

I.

R.M. was fifteen years old when she met K.M.; he was in his late twenties and had already had two children with another woman, referred to in the record before us simply as Kathy.*fn1 The record is unclear whether he and Kathy were ever married. He and Kathy were not able to support their first child, and she was adopted by K.M.'s brother and sister-in-law. The second died in infancy. They had a third child, another girl. R.M. was seventeen when she gave birth to B.M. She and K.M. married thereafter. R.M. was hospitalized for a period of time after B.M.'s birth, evidently suffering an episode of post-partum depression.*fn2

In late 2001, R.M. and K.M. were receiving therapy from Ann Herrmann as a result of an incident of domestic violence which had occurred at the end of the summer of 2001. During that summer, R.M.'s niece, who was ten to twelve years old, came to spend time with them. Although R.M. denied it in her testimony at trial, there was evidence that she was concerned about K.M.'s inappropriate behavior with her niece and sent the girl home. At trial, R.M. said the girl simply returned home because the visit had ended. Shortly after the girl's departure, K.M. beat R.M. so severely that she had two black eyes and bruises on her arm and wrist. R.M.'s aunt prevailed upon her to go to the police to seek protection. The officer with whom she met testified that R.M. told him that this was not the first time that K.M. had beaten her. Although R.M. ultimately declined to seek an order of protection, K.M. was charged with simple assault. It was this episode of domestic violence that led to R.M.'s counseling relationship with Ms. Herrmann.

On December 14, 2001, R.M. called Ms. Herrmann and told her that she was concerned that K.M. might be sexually abusing B.M. Ms. Herrmann told R.M. that she was obligated to notify the New Jersey Division of Youth and Family Services ("DYFS") of this report, and she urged R.M. to do so as well. At trial, Ms. Herrmann testified that R.M. told her that B.M. had told R.M. that K.M. was, in fact, abusing her. R.M. denied this at trial and said she had simply called Ms. Herrmann for advice on how best to talk to B.M. on the general topic of good touching and bad touching.

Ms. Herrmann immediately notified DYFS, and it promptly responded to the M.s' home and took R.M. and her daughter to the prosecutor's office to be interviewed. R.M., however, refused to permit B.M. to be interviewed unless she was present. Members of the prosecutor's office would not permit this and when R.M., who was seven months pregnant at the time, said she was leaving with B.M., she was told she would be placed under arrest. Eventually, B.M. was interviewed by Investigator Kenneth Hess, who had received some training in the interviewing of children in areas of alleged sexual abuse. That interview was videotaped, and the videotape is part of the record before this court. During it, when asked if anyone had ever touched her "pee-pee," she nodded yes and when asked who, responded, "Daddy." She said that he had put his hand into her "pee-pee" "a lot of times" and that it happened on the couch in the family room.

Following the interview, a DYFS worker met with R.M. and she agreed not to permit K.M. to have any contact with the girl while the investigation was conducted. She and B.M. went to stay with a relative for a short period of time after which K.M. vacated their house, and R.M. and B.M. returned home. K.M. has not seen B.M. since, a period of more than eight years.

The police contacted K.M. that same evening, and he voluntarily went to the station. He denied ever touching B.M. inappropriately and said that R.M. must have encouraged B.M. to make the charge.

DYFS arranged for B.M. to be evaluated at the Dorothy B. Hersh Regional Child Protection Center, where she was seen by Dr. Gladibel Medina. Dr. Medina asked B.M. if anyone had ever touched her in a way that made her uncomfortable, and she immediately responded, "Daddy." She was unwilling to describe what happened but drew a picture which Dr. Medina described in the following manner:

[B.M.] proceeded to draw a girl with a pink crayon and said that the girl was her. Then she drew another figure in green and said that it was "daddy". Then she drew a big line from the green figure's right hand all the way to the pink figure's body and at the same time said "he put his hand inside the front part[."]

Dr. Medina also conducted a physical examination; she found no signs of any traumatic injury or sexually transmitted disease.

DYFS arranged for counseling for R.M. and B.M. through Family Preservation Services ("FPS"). FPS is a program whose goal is to keep families together and prevent placement; it provides short-term assistance, not long-term counseling. An FPS staff member, Sharon Baranowski, a licensed clinical social worker, met with R.M. and B.M. twelve times from December 2001 through January 2002. She wrote a very favorable discharge summary, expressing the view that both R.M. and B.M. displayed good coping skills, and R.M. was a "competent, loving and considerate mother . . . ." In her testimony Ms. Baranowski admitted she had limited interaction with B.M., did not raise the issue of sexual abuse with B.M., and did not consider herself an expert in diagnosing sexual abuse.

In February 2002, R.M. gave birth to E.M. K.M. was at the hospital for her birth.

In April 2002, K.M. was arrested and charged with aggravated sexual assault, N.J.S.A. 2C:14-2(a); sexual assault, N.J.S.A. 2C:14-2(b); and endangering the welfare of a minor, N.J.S.A. 2C:24-4. R.M. posted his bail, which was set at $100,000. We are informed that a condition of his bail was that he have no contact with B.M. The record before us contains a subsequent Accusation, issued in March 2003, charging K.M. with one count of child abuse or neglect of B.M. Also in March 2003, K.M. was admitted into the county's pre-trial intervention program ("PTI"), which he completed in April 2006. The record before us contains no explanation of the reasons why the prosecutor's office elected not to proceed to prosecute the more serious charges.

At the time of his arrest, K.M. waived his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and agreed to answer questions. He initially denied touching B.M. in her vaginal area but later said he did place ointment on her vagina. He said he did so because B.M. would wet her bed during the night and would develop severe rashes as a result.*fn3 He also told the police that he and B.M. would play a game called "Stand It" in which he would tickle B.M. on her inner thighs until she would say she could not "stand it" any longer. He also told the investigator that B.M. would often make up stories and that he and R.M. would not permit her to receive counseling for sexual abuse because that would make her believe that she had been abused.

R.M. adopted this position. She steadfastly refused to permit B.M. to participate in sexual abuse counseling and in August 2002 told the DYFS caseworker that the allegations against K.M. were untrue.

The children were removed from R.M.'s care in October 2002. The DYFS caseworker, Brooke Arnold,*fn4 was scheduled to visit R.M. and the children in the late afternoon of October 16, 2002.

When she arrived at work that morning, she found twenty-three voicemail messages from R.M. She testified that the tone of the messages became increasingly agitated, as opposed to the flat affect R.M. had previously expressed in their conversations. They also became increasingly hostile. Because of the number of these messages and their tone, she consulted with her supervisor. They decided that Ms. Arnold should not wait until the late afternoon appointment but should move up the visit to make sure the children were safe. They also decided that another DYFS worker, Bonnie Thornbury, should accompany her.

In her testimony, R.M. admitted making a number of telephone calls that morning, but said there were no more than eleven. She said she was calling to try to cancel the day's appointment because she was not feeling well.

When Arnold and Thornbury arrived, R.M. was feeding the baby, E.M., and B.M. was in school. Arnold and Thornbury testified that R.M. became extremely agitated at their arrival, to the point that they became concerned about her mental state. Arnold told R.M. they would not leave unless she agreed to submit to a psychiatric screening and R.M. acceded. Arnold contacted Psychiatric Emergency Screening Services ("PESS") at Kimball Medical Center, and Stuart Cohen was dispatched to the house. Cohen is not a physician or a psychologist but was trained in psychiatric screening. He spoke with R.M. and then told Arnold and Thornbury that he did not find R.M. to be a danger to herself or to others. In the report he prepared, he described her appearance as "restless, anxious, angry" and her speech as "pressured." He noted that her reasoning and judgment were "fair" and her insight "poor" and recommended she receive outpatient treatment. There is no indication in the record that he expressed any opinion on her ability to care for the children, as opposed to the standard for recommending her involuntary commitment. N.J.S.A. 30:4-27.2. R.M. refused to execute a case plan. Arnold consulted with her supervisor, who told her that she did not have sufficient grounds to remove the children, and she and Thornbury departed.

The following day, October 17, DYFS received a call from the police, who were concerned about R.M.'s mental state. R.M. had made several 9-1-1 calls to the police, first expressing concern about B.M's safety. B.M. was in school; the police went to the school and found nothing of concern with respect to B.M. In her later 9-1-1 calls, R.M. said she was concerned that E.M., who was approximately eight months old, had sand in her eyes. At trial, R.M. said she was concerned because a relative in the past had told her that she had damaged her eyes by rubbing them when she had sand in them. R.M. said that she was afraid that E.M. might have gotten sand in her eyes. The police took R.M. and E.M. to the hospital and Arnold and Thornbury met them there. E.M. was examined at the hospital, and her eyes were found to be fine.

In the Referral Response Report that Arnold later prepared, she wrote that when she arrived at the hospital, the triage nurse in the emergency room described R.M.'s behavior when she arrived as irrational. The nurses' notes, referring to R.M.'s later conduct, state that "no inappropriate conduct" was observed. The physician's record, however, notes that the police had reported R.M.'s behavior as "bizarre" and that they were requesting a DYFS evaluation.

When Arnold and Thornbury arrived at the hospital, K.M. was there. The two DYFS workers met with R.M. and K.M. and told them that DYFS was going to temporarily place the children because of its concerns about R.M.'s mental state. Arnold outlined that the couple could agree to a fifteen-day temporary placement or DYFS would seek court authorization for an emergency removal. Arnold explained that DYFS had contacted K.M.'s brother and sister-in-law, who had agreed that the two girls could stay with them. She said that DYFS had serious concerns about R.M.'s mental state. K.M. said that R.M. was seeing a psychiatrist, but he did not know the doctor's name.

K.M. was willing to sign a consent to this temporary placement, but R.M. resisted. After the two had a chance to talk privately, however, R.M. agreed to do so. B.M. and E.M. went to their uncle and aunt's house that evening.

Six days later, on October 23, 2002, R.M. and K.M. revoked their consent to this placement. DYFS then filed an order to show cause, and the court awarded custody of the children to DYFS.

B.M. and E.M. remained with their relatives until January 2003, when they asked that the girls be removed. They went to a foster home for only a few days; E.M. was so distressed the foster mother requested they be placed elsewhere. They returned to their uncle and aunt until April 2003, when they went to another foster home, where they have resided ever since. According to the record presented to us, their foster mother is committed to adopting both girls.

II.

Before proceeding further, we are compelled to note that our review of this matter has been hampered by the protracted nature of the proceedings below. As we noted, B.M. and E.M. were removed from their parents' custody in October 2002, and DYFS filed its complaint under Title 9 on November 11, 2002. The fact-finding hearing to determine whether B.M. and E.M. were abused and neglected within the meaning of Title 9 commenced on February 19, 2003; it did not conclude until nearly six months later, in August 2003. The trial court did not issue its decision until December 2003, ten months after the hearing started. In its decision, the trial court stated that DYFS had not presented sufficient evidence to permit a finding that K.M. had sexually abused B.M. It was satisfied, however, that both parents had displayed sufficiently poor judgment in their responses that a finding of abuse and neglect was warranted.

In January 2005, more than a year later, the trial court conducted a two-day permanency hearing. At that hearing, DYFS presented additional evidence in support of its contention that K.M. had sexually abused B.M. and that R.M. had failed to protect her. At the end of that hearing, although the trial court declined to make a specific finding as to whether K.M. has sexually abused B.M., it concluded that DYFS's plan of termination of parental rights, followed by adoption by the girls' foster mother, was appropriate. It directed DYFS to file its guardianship complaint, which it did on March 7, 2005.

Trial of the guardianship matter did not commence until August 1, 2006, and testimony was not concluded until August 2007. The trial court did not give its opinion until October 3, 2007. With the extended breaks that took place between trial dates, it is not at all surprising that the parties and the trial court at times had difficulty in keeping track of what had occurred at prior days. One of the results of these delays is that the parties have placed before us the records of what occurred in all three proceedings, significantly adding to the burden of reviewing this matter. The reasons for these extensive delays are not completely apparent from the record before us; we are satisfied, however, that just as no one party is entirely at fault, no one party is blameless.

At the guardianship trial, DYFS presented two expert witnesses, both clinical psychologists, Jesse Whitehead, Jr., Psy.D., and Chester E. Sigafoos, Ph.D. Dr. Whitehead performed a psychological evaluation of K.M., as well as a bonding evaluation of K.M. and R.M. with E.M. Dr. Sigafoos conducted a psychological evaluation of R.M. and a bonding evaluation of B.M. and E.M. with their foster mother. He attempted to perform a ...

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